SOUTHEAST TEXAS RECORD

MARSHALL -- On a clear night in October 2004, Keisha Smith, with cocaine in her system, did not hear the warning bells or see the flashing lights signaling that a train was crossing the railroad intersection.

Smith proceeded to drive her car into the 75th car of a 126-car train. Her car was dragged and caught fire before the train conductor or engineer was able to stop the train. Smith sustained severe injuries and was taken to Titus Regional Medical Center for treatment.

Although the Texas Department of Public Safety determined all warning signals were operating properly, Smith filed a lawsuit against Kansas City Southern Railway, American Electric Power and Southwestern Electric Power Company on July 14, 2006, in the Marshall Division of the Eastern District of Texas.

Judge Leonard Davis referred the case to Magistrate Judge John D. Love.

In her amended complaint, Smith alleged that while she was traveling home to care for her children after her work as a telemarketer, she approached the railroad intersection and do not observe "warning signals or other evidence indicating that a train was present or that it was unsafe to proceed." The amended complaint states that when she attempted to cross the railroad tracks, "Ms. Smith's vehicle collided with Defendants' train which was unloading freight at a Swepco power plant."

The complaint also alleges that the train operators did nothing to help Ms. Smith from her wrecked and uninsured vehicle, but continued to "advance the train while unloading freight." Ms. Smith argues this increased her injuries as her burning car was dragged down the tracks. After being cut from her car, she was transported for emergency treatment.

The lawsuit alleges the defendants were negligent through failure to warn, maintain signal, have appropriate signal, maintain a safe crossing, render aid after the accident, hiring and supervision of employees, operation of train, operation of crossing and negligent infliction of emotional distress. The suit also claims the defendants are liable for their premise through failure to provide a safe crossing and "failure to warn of the unreasonably dangerous condition."

Smith states she is totally disabled after more than 20 surgeries and is unable to care for her children including a newborn at the time of the incident. The amended complaint was seeking exemplary damages for gross negligence and actual damages of medical care and expenses, physical impairment, physical disfigurement, pain and suffering, mental pain and anguish, loss of wages, loss of past earning capacity, and loss of mother's consortium for her five children.

The complaint states that after the accident, the newborn could not continue to receive nourishment from his mother and the older children had to aid their mother by cleaning her bedpan and toilet facilities.

At the time of the amended complaint, attorneys Marshall C Wood and Cory J. Floyd of the Texarkana law firm Norton and Wood, L.L.P represented Smith in her allegations. However, six months after filing the amended complaint, the attorneys withdrew from the case and Smith preceded pro se. The judge dismissed the minors' claims without prejudice.

After spending a year and a half defending against the dramatic allegations, the defendants Kansas City Southern, American Electric Power, Southwestern Electric Power Company were granted a motion for summary judgment and a final judgment that officially dismissed Smith's claims on Jan. 31, 2008.

The defendants argued that Ms. Smith's injuries were caused by her own negligence. First, records show evidence that the railroad crossing at issue was marked by the appropriate warnings including a roadway sign, warning devices that extended over the highway and alerted drivers by flashing four red lights when a train is near, and two more flashing red lights on a post to the right of the crossing.

Second, the accident report verifies the warning signals were working properly at the time of the accident. Third, the defendants argued the crossing was perpendicular to the highway and clearly visible for 4/10 of a mile before reaching the crossing.

The defendants quoted case law that stated that the "presence of railroad cars that are already occupying the crossing and directly in front of the driver are an additional warning of danger."

Further evidence presented by the defendants rebutting Ms. Smith's claims, include how neither the conductor or engineer heard or saw Smith's vehicle hit the train but when they learned about the accident by radio, the train was stopped and secured. The train had not reached SWEPCO to unload. The engineer states that he remained at the accident scene until Smith was removed from her vehicle.

And finally, shortly after arriving at the hospital, Smith's drug tests revealed she was positive for cocaine. A nurse also documented that "an unknown crystalline substance" was found on Smith and was turned over to the police department.

Case No.: 2:06cv00291